Citation Nr: 1337561	
Decision Date: 11/18/13    Archive Date: 11/26/13

DOCKET NO.  09-11 291	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 50 percent for bilateral hearing loss, prior to November 16, 2011.

2.  Entitlement to a staged initial evaluation in excess of 60 percent for bilateral hearing loss, from November 16, 2011.

3.  Entitlement to referral for consideration of an extraschedular evaluation for bilateral hearing loss.

4.  Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. J. In, Counsel


INTRODUCTION

The Veteran had active service from October 1969 to July 1973.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina, which granted service connection for bilateral hearing loss with an initial evaluation of 40 percent, effective September 19, 2006.  A July 2010 rating decision granted an increased evaluation of 50 percent for bilateral hearing loss, effective September 19, 2006.  Subsequently, in a December 2011 rating decision, the RO increased the rating for service-connected bilateral hearing loss to 60 percent, effective November 16, 2011.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).  As such, the issues on appeal have been recharacterized as listed on the title page of this decision.

In May 2011, a Travel Board hearing was held before the undersigned Veterans Law Judge and a transcript of that hearing is of record.

This case was previously before the Board in September 2011 and was remanded for additional development.  For the reasons discussed below, the Board finds that there has been substantial compliance with its September 2011 remand with regard to the issues decided herein.  See Stegall v. West, 11 Vet. App. 268 (1998).

The issues of entitlement to referral for consideration of an extraschedular evaluation for bilateral hearing loss and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  Prior to November 16, 2011, the Veteran's bilateral hearing loss disability was manifested by Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left ear in January 2007; Level IX hearing acuity in the right ear and Level VIII hearing acuity in the left ear in April 2008; and Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left ear in December 2009.

2.  From November 16, 2011, the Veteran's bilateral hearing loss disability has been manifested by Level IX hearing acuity in both ears.


CONCLUSIONS OF LAW

1.  The criteria for an initial evaluation in excess of 50 percent for bilateral hearing loss, prior to November 16, 2011, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013).

2.  The criteria for a disability evaluation in excess of 60 percent for bilateral hearing loss, from November 16, 2011, have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.85, 4.86, Diagnostic Code 6100 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VCAA

VA has met all statutory and regulatory notice and duty to assist provisions as to the Veteran's claims.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013).

The Veteran's claim concerning the proper disability ratings to be assigned to his service-connected bilateral hearing loss arises from his disagreement with the initial disability rating assigned to this condition following the grant of service connection.  Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial.  Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and SOC described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim.  38 C.F.R. §  3.159(b)(3).  The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations.  Therefore, the Board finds the Veteran has been informed of what is necessary to achieve higher ratings for the service-connected disability at issue.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton, 9 Vet. App. 553 (1996).

Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence.  Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination).

The Board concludes that VA's duty to assist has also been satisfied.  The RO has obtained the Veteran's service treatment records, as well as his post service medical records, and the Veteran's lay statements.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

VA also provided the Veteran VA audiology examinations in January 2007, December 2009, and November 2011.  Green v. Derwinski, 1 Vet. App. 121 (1991) (holding that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran).  Both the January 2007 and December 2009 VA audiology examination reports indicated that the Veteran's speech recognition results were too unreliable to score, however, no explanations were provided as to why the speech discrimination results were unreliable.  Additionally, the December 2009 VA examiner did not describe the functional effects caused by a hearing disability.  See Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007) (holding that relevant to VA audiological examinations, in addition to dictating objective test results, a VA audiologist must fully describe the functional effects caused by a hearing disability in his or her final report.)  Accordingly, to accurately assess the Veteran's current level of hearing loss disability, the Board, in its September 2011 remand, ordered another VA examination, which was obtained in November 2011.  The Board finds that the November 2011 VA examination was adequate because the report provided sufficient detail to determine the current severity of the Veteran's bilateral hearing loss.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  The VA audiologist fully described the effects of the Veteran's hearing disability on his occupational functioning and daily activities.  See Martinak, 21 Vet. App. at 455.  The VA audiologist further provided an explanation as to why the Veteran's speech discrimination scores were not considered sufficiently reliable enough for reporting and for use for rating purposes.  Under these circumstances, the Board finds the RO substantially complied with the Board's September 2011 remand directives.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008).  Thus, further examination is not necessary regarding the issues on appeal.

Despite the lack of description of the functional effects caused by the Veteran's hearing disability in the December 2009 VA examination report, the remaining medical, and lay, evidence of record, as well as the other VA examinations, document the Veteran's complaints pertaining to his hearing loss disability and the functional impact caused by this disability.  As a disability rating for hearing loss is assigned based on a mechanical application of audiometric test findings, in this case, to the criteria set forth in 38 C.F.R. § 4.85, the Board finds that the objective audiometric test findings noted at the December 2009 VA examination are still useful for rating purposes.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).

Finally, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court recently held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, during the Board Travel Board hearing, the VLJ noted the elements of the claim that were lacking to substantiate the claim for increased rating.  The VLJ solicited information as to any pertinent potentially available outstanding evidence.  The VLJ asked questions to draw out the current state of the Veteran's bilateral hearing loss disability.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for increased rating.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).


Law and Analysis

Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2013).  Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases.  38 C.F.R. § 4.21 (2013).

Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder.  However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability.  While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

Where a veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous."  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time.  Id.

Service connection for bilateral hearing loss was granted in a February 2007 rating decision, and a 40 percent initial disability rating was assigned effective September 19, 2006.  In a July 2010 rating decision, the RO increased the rating to 50 percent effective September 19, 2006.  Subsequently, in a December 2011 rating decision, the RO increased the rating for service-connected bilateral hearing loss to 60 percent, effective November 16, 2011.  See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).

The severity of a hearing loss disability is determined by comparisons of audiometric test results with specific criteria set forth at 38 C.F.R. § 4.85.  Evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by pure tone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 Hertz (cycles per second).  The Rating Schedule allows for such audiometric test results to be translated into a numeric designation ranging from Level I to Level XI in order to evaluate the degree of disability from bilateral service-connected defective hearing.  An examination for hearing impairment must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test.  Examinations must be conducted without the use of hearing aids.  38 C.F.R. § 4.85.

The provisions of 38 C.F.R. § 4.86(a) provide that when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral.  Each ear will be evaluated separately.  The provisions of 38 C.F.R. § 4.86(b) provide that when the pure tone threshold is 30 decibels or less at 1,000 Hertz, and 70 decibels or more at 2,000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results is the higher numeral.  That numeral will then be elevated to the next higher Roman numeral.  Each ear will be evaluated separately.

The Veteran was provided a VA examination in January 2007.  The VA examiner indicated that the claims file was reviewed.  The Veteran complained of hearing and understanding conversational level speech in all communicative levels.  See Martinak, 21 Vet. App. at 455.  On audiological evaluation, pertinent pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
40
75
105
105
LEFT
65
70
105
105+

The VA examiner noted that the Veteran's speech recognition testing results were too unreliable to score, and that the Veteran could not participate effectively in speech discrimination testing with sufficient reliability to report scores.  The diagnosis was sensorineural hearing loss, bilaterally.  

In his February 2008 notice of disagreement, the Veteran claimed that his hearing loss is much worse than shown on his hearing test.  He stated that "[s]ometimes I indicated that I could hear a tone when really I could not hear it but felt the pain from it."  He stated that he was told by his VA and other physicians that his hearing could not be improved by devices.  He further stated that he does not try to listen to the radio or television, music, or words, because he cannot make out the words and what he hears sounds like broken noise, with moments of silence between moments of sounds.  See Martinak, 21 Vet. App. at 455.  

VA treatment reports dated from September 2007 to October 2008 reflect that the Veteran had severe hearing loss with increasing difficulty with communication, especially with elderly parents and that the Veteran would benefit from external hearing aids.  He was recommended cochlear implants.  

The Veteran underwent a private audiological evaluation in April 2008.  The Veteran related that in the brief period during which he tried hearing aids, he felt like amplifications simply made things more unpleasant but not any clearer.  He stated that he used closed captions on television but was not aware that there were any telephone type devices for the hearing impaired.  It was noted that he did fair with cell phone but poorly with a regular telephone.  On clinical examination, the private physician noted that the Veteran was extremely hard of hearing in conversational speech and appeared to be reading lips as carefully as possible and still communicating quite poorly.  See Martinak, 21 Vet. App. at 455.  The impressions were severe to profound sensorineural hearing loss, presumably noise-induced; and poor prior experience with amplification.  On audiological evaluation, pertinent pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
70
80
115
115
LEFT
65
75
100
115

Speech discrimination scores, using the W-22 list, were 12 percent in the right ear and 24 percent in the left ear.  The Veteran was recommended to talk to his audiologist about cochlear implants.

The Veteran was provided another VA examination in December 2009.  The VA examiner indicated that the claims file was reviewed.  On audiological evaluation, pertinent pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
40
80
105
105+
LEFT
70
70
100
105+

The VA examiner noted that the Veteran's speech recognition results were unreliable.  The examiner stated that the speech recognition results were not considered sufficiently reliable enough for reporting and for use for rating purposes but pure tone levels alone were considered the best estimate of organic hearing loss.  The diagnosis was bilateral sensorineural hearing loss.

At his May 2011 hearing before the Board, the Veteran testified that he had a very hard time understanding people and that he could not hear anybody that he could not see.  He could not watch television without caption or listen to the radio; music was nothing but noise.  He stated that although he could feel sound at a very high volume he could not hear the sound and that half of the frequency range was gone.  

Most recently, the Veteran was provided a VA audiology examination on November 16, 2011.  The VA examiner indicated that the Veteran's claims file was reviewed.  On audiological evaluation, pertinent pure tone thresholds, in decibels, were as follows:



HERTZ



1000
2000
3000
4000
RIGHT
65
90
105+
105+
LEFT
80
85
100
105+

The VA examiner noted that the Veteran's speech recognition test results were unreliable.  The examiner stated that the use of speech discrimination was not appropriate for rating purposes because the Veteran was able to actively participate in conversation with little difficulty and the scores obtained during speech recognition testing were not commiserate with the results obtained from pure tone testing nor the functional level displayed during the case history interview.  Based on this, the examiner stated that he would expect significantly higher speech discrimination scores.  The diagnosis was a bilateral moderate to profound sensorineural hearing loss.  The disability's impact on occupational activities was noted to be hearing difficulty.  However, the examiner stated that no degree of hearing loss results in an "unemployable" status noting that while a significant hearing loss may alter the nature of employment, or communication method, it does not render the individual unemployable.  The Veteran reported that he could not hear any television, radio or movies.  He had to use captions on television.  He further stated that he could communicate reasonably well when he could see the face but he had lots of difficulty when people call him on the phone.  See Martinak, 21 Vet. App. at 455.

The January 2007 VA audiological examination revealed a right ear puretone threshold average of 81.25 decibels, at 1000, 2000, 3000, and 4000 Hertz, and a left ear puretone threshold average of 86.25 decibels, at 1000, 2000, 3000, and 4000 Hertz.  The VA examiner noted that the Veteran's speech recognition test results were too unreliable to score and that the Veteran could not participate effectively in speech discrimination testing with sufficient reliability to report scores.

The report of private audiometric findings in April 2008 reflects a right ear puretone threshold average, at 1000, 2000, 3000, and 4000 Hertz of 95 decibels, and a left ear puretone threshold average, at 1000, 2000, 3000, and 4000 Hertz of 88.75 decibels.  Speech discrimination scores were 12 percent in the right ear and 24 percent in the left ear.  However, it was indicated that the speech discrimination scores for both ears were obtained by utilizing the W-22 list, not the Maryland CNC word list.  As such, those findings are not useful for rating purposes.

The December 2009 VA audiological examination revealed a right ear puretone threshold average of 82.5 decibels, at 1000, 2000, 3000, and 4000 Hertz, and a left ear puretone threshold average of 86.25 decibels, at 1000, 2000, 3000, and 4000 Hertz.  The examiner noted that the speech recognition scores were not considered sufficiently reliable enough for reporting and for use for rating purposes but pure tone levels alone were considered the best estimate of organic hearing loss.  

The November 2011 VA audiological examination revealed a right ear puretone threshold average of 91.25 decibels, at 1000, 2000, 3000, and 4000 Hertz, and a left ear puretone threshold average of 92.5 decibels, at 1000, 2000, 3000, and 4000 Hertz.  The VA examiner noted that the Veteran's speech recognition scores were unreliable and that the use of speech discrimination was not appropriate for rating purposes because the Veteran was able to actively participate in conversation with little difficulty and the scores obtained during speech recognition testing were not commiserate with the results obtained from pure tone testing nor the functional level displayed during the case history interview.  

The provisions of 38 C.F.R. § 4.85(c) state that Table VIa will be used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of § 4.86.  In this case, the Veteran's speech discrimination scores are either unavailable or not useful for rating purposes because they were found either too unreliable to score or not useful because they are not obtained using the Maryland CNC word list.  The November 2011 VA examiner certified that the use of the Veteran's speech discrimination test is not appropriate in this case, and therefore, Table VIa will be used to determine the level of hearing acuity based only on the puretone threshold average.

Applying the clinical findings from the January 2007 audiological evaluation to the rating criteria results in Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left ear.  See 38 C.F.R. § 4.85, Table VIa.  The provisions of 38 C.F.R. § 4.86(b) are not applicable to either ear.  Applying these numeral designations to Table VII results in a 40 percent disability rating for bilateral ear hearing loss disability.  38 C.F.R. §§ 3.383, 4.85 (2013).  

Applying the clinical findings from the April 2008 audiological evaluation to the rating criteria results in Level IX hearing acuity in the right ear and Level VIII hearing acuity in the left ear.  See 38 C.F.R. § 4.85, Table VIa.  The provisions of 38 C.F.R. § 4.86(b) are not applicable to either ear.  Applying these numeral designations to Table VII results in a 50 percent disability rating for bilateral ear hearing loss disability.  38 C.F.R. §§ 3.383, 4.85.

Applying the clinical findings from the December 2009 audiological evaluation to the rating criteria results in Level VII hearing acuity in the right ear and Level VIII hearing acuity in the left ear.  See 38 C.F.R. § 4.85, Table VIa.  The provisions of 38 C.F.R. § 4.86(b) are not applicable to either ear.  Applying these numeral designations to Table VII results in a 40 percent disability rating for bilateral ear hearing loss disability.  38 C.F.R. §§ 3.383, 4.85.  

Thus, an initial evaluation in excess of 50 percent, prior to November 16, 2011, is not supported by the evidence of record.  Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992).

Applying the clinical findings from the November 16, 2011 audiological evaluation to the rating criteria results in Level IX hearing acuity in each ear.  See 38 C.F.R. § 4.85, Table VIa.  The provisions of 38 C.F.R. § 4.86(b) are not applicable to either ear.  Applying these numeral designations to Table VII results in a 60 percent disability rating for bilateral ear hearing loss disability.  38 C.F.R. §§ 3.383, 4.85.  Thus, a disability rating in excess of 60 percent, from November 16, 2011, is not supported by the evidence of record.  Lendenmann, 3 Vet. App. at 349.

Although the examination results dated during the entire appeal period mostly reflect an exceptional pattern of hearing impairment in both ears where the criteria in 38 C.F.R. § 4.86(a) are applicable, application of this provision does not affect the results in any way, because, as explained above, only Table VIa can be used in this case.

In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against assigning increased disability ratings for the Veteran's bilateral hearing loss disability, the doctrine is not for application.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to an initial evaluation in excess of 50 percent for bilateral hearing loss, prior to November 16, 2011, is denied.

Entitlement to a disability evaluation in excess of 60 percent for bilateral hearing loss, from November 16, 2011, is denied.


REMAND

Generally, evaluating a disability using either the corresponding or an analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2013).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  However, in exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2013).

In its September 2011 remand, the Board noted that although a January 2009 statement of the case advised the Veteran of the provisions of 38 C.F.R. § 3.321(b)(1), which pertain to extraschedular evaluations, there was no evidence that the RO considered whether the Veteran's case should be forwarded to the Director of the Compensation and Pension Service for extraschedular consideration in the February 2007 rating decision, January 2009 statement of the case, January 2010 supplemental statement of the case, July 2010 rating decision, or July 2010 supplemental statement of the case.  Thus, the Board specifically instructed that the RO should consider whether a referral for extraschedular rating is warranted for his service-connected bilateral hearing loss.  However, this has not been done.  RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance.  See Stegall v. West, 11 Vet. App. 268, 271 (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure compliance).  As such, a remand is required for this matter.

The Board also finds that the issue of entitlement to a TDIU is intertwined with the issue of an extraschedular evaluation for bilateral hearing loss.  See 38 C.F.R. § 19.31 (2012); Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).  As the case is remanded for adjudication of the issue of an extraschedular evaluation for bilateral hearing loss, this issue must be adjudicated by the RO prior to the adjudication of entitlement to TDIU benefits.  See Harris, 1Vet. App. at 183.

Accordingly, the case is REMANDED for the following action:

Adjudicate the issue of entitlement to referral of the claim for extraschedular evaluation for bilateral hearing loss under 38 C.F.R. § 3.321(b)(1), and then readjudicate the issue of entitlement to TDIU.  If any benefit sought is not granted, issue a supplemental statement of the case and afford the Veteran and his representative an appropriate opportunity to respond.  The case should then be returned to the Board, as warranted.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs